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Thursday, July 14, 2005

The Ticking Roe Clock

The absolute best, although entirely improbable, scenario for the Bush administration would be appointing replacements for O'Connor, Rehnquist, and Stevens that will all overturn Roe. Is there a point, and/or have we reached that point, where this is not a good idea?

Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."

Bork thought in 1990 that it was too late to overrule the decisions validating the New Deal and congressional powers over commerce, taxation, and spending. Overturning those decisions would "overturn most of modern government and plunge us into chaos." Courts should avoid extending the powers of the federal government and may refuse, as the court did in Lopez and Morrison, to continue on its present trajectory. But the past decisions should stand.

Roe, however, in 1990 was still worthy of being overruled.

The question becomes whether it should still, even for originalists, be overruled. Bork thought (I assume he still thinks) that cases like Lochner and Roe never fall into this stare decisis trap. He distinguishes them from the more structural precedents associated with the New Deal based on their lack of "great disruption of institutional arrangements." Since the overall structure would remain in place, and the institutional result would just be a mad dash to the legislature, overruling these decisions comes at no great cost.

I wonder, though, whether the 30 year life of a constitutional principle doesn't at least offer some justification for not overruling the decision. Roe has, of course, been hotly contested for its entire life, and there is still a sizable portion of the body politic that wants its head. But at least some right to abortion is fairly ingrained in society. (Note: Lawrence is a completely different story, should be overturned tomorrow)

Consider the extension of the equal protection clause to gender equality. It seems, to me, far too late to overturn every gender discrimination case and retry them on Due Process grounds. It's equally too late to overturn Bolling v. Sharpe and the warping of the Due Process Clause of the Fourteenth Amendment. These seem, to me, indistinguishable from Roe.

What I'm searching for is a neutral principle for the application of stare decisis that overturns Roe but not the gender equality and incorporation cases. I know that T. More has an answer. . . . We're waiting . . .

UPDATE: Get a Stare decisis is fo' suckas t-shirt. (ht: Mike)

UPDATE II: By the way, an excellent article I should have initially noted is Henry Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L. Rev. 723.

He poses the problem well:
"Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates as a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that."
His justification for Stare Decisis:
"[S]tare decisis operates to promote system-wide stability and continuity by ensuring survival of governmental norms that have achieved unsurpassed importance in American society.


Blogger Unlearned Hand said...

Great post. I too am waiting for T. More to respond.

My initial thought on the matter is that foundationally, stare decisis is normatively pragmatic. I mean by that, SD, though a longstanding legal doctrine (the normative part), is a pragmatic one. Given our common law system, which for longer than has otherwise been the case worked by the hands of (philosophical) pragmatists, SD's status as foundational and integral to our legal system is no mystery. It is, however, unnerving for non-pragmatists because it is so inconsistently invoked, as the post mentioned. Inconsistent application undermines the rule of law and another longstanding legal doctrine, the principle of legality. Also, an originalist--at least this one--cannot accept an unquestioned application of SD because it may be the case that in applying SD, we're adding insult to injury. I belive Justice Thomas was trying to say as much in his dissent in Kelo.

Upholding Roe on the grounds of SD poses the same problem Justice Thomas illustrates in Kelo.

[Cross posted @ http://unlearnedhand.blogs.com/alwaysdissenting/2005/07/stare_decisis_1.html ]

10:41 PM  
Blogger Rod said...

In response to Helvidius, I think that Roe is not deserving of stare decisis protection. A constitutional decision which has no basis in the constitution, which yields nothing but a jurisprudence of doubt, and which has unforseen effects on the nature of judging should not be reaffirmed unless independent, substantive grounds exist. The doctrine of stare decisis is not some constitutional doctrine of abstention. Courts are required to interpret the Constitution, and to do so correctly. While stare decisis certainly has force in some cases, particularly statutory interpretation cases, affirmance of Roe In other words, the triumvirate of Casey's reasoning that if x= the constitutional argument for a right to abortion and y= the number of years a decision has been law, then x+y = z (yay, constitutionality) makes a mockery of judging. (Let's put aside that fact that the real formula in Casey was more like x - (a) where (a) stands for everything about Roe that we think isn't correct, like a trimester system.) The simple fact is, Roe cant stand on its own two constitutional legs, so to see it survive, it needs a constant "helping hand." It's almost like in the context of Roe, constitutional decision-making has become akin to escorting the stumbling and falling town drunk home to bed. But it should at least strive to be more: constitutional adjudication might be aided by stare decisis, but the doctrine should never be the main reason for affirming a holding. If the only argument for saying Roe should not be overturned is simply the length of time it has been (sort of) followed, thats an amazingly weak argument to stand upon.

Beyond the theoretical, there are practical reasons for not affording Roe stare decisis "protection." Justice Kennedy's opening in Planned Parenthood v. Casey laments "Liberty finds no refuge in a jurisprudence of doubt." But all that decision has given us is doubt. Justice Kennedy and O'Connor can't even agree on what the decision allows (See Stenberg), so how is private ordering and state regulation supposed to be somehow stabilized by reaffirmance.

4:37 PM  
Blogger Zev said...

I'm generally in agreement with Phocion's comment immediately preceding but just wanted to add a coupe of quick points.

Of necessity, stare decisis has greater force in statutory than in constitutional cases because statutory decisions can be overruled by legislatures, whereas the Supreme Court's constitutional meanderings are irremediable short of an amendment.

As a corollary, while the New Deal and other government programs were enacted with at least the veneer of popular assent (Randy Barnett might disagree), Roe is a counterdemocratic constitutional eyesore.

6:30 AM  

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